By Adam Liptak
The Supreme Court seemed splintered earlier this week about whether to adopt a legal theory that would radically reshape how federal elections are conducted, giving state legislatures largely unchecked power to set all sorts of election rules and draw congressional maps warped by partisan gerrymandering.
The justices’ questioning over three hours of arguments suggested that they were roughly divided into three camps. The three most conservative justices appeared prepared to embrace an expansive version of the theory, while the three liberal justices were adamant that it should be rejected.
The remaining members of the court — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — seemed to be searching for a compromise under which state supreme courts would generally have the last word on disputes over state laws governing federal elections but be subject to oversight from federal courts in rare cases.
The case concerned the “independent state legislature” theory, which is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Proponents of the strongest form of the theory say this means that no other organs of state government — not courts, not governors, not election administrators, not independent commissions — can alter a legislature’s actions on federal elections. The arguments Wednesday focused on whether state supreme courts can reject state laws on federal elections under their constitutions.
David H. Thompson, a lawyer for Republican state lawmakers in North Carolina, said the theory means that the state’s Supreme Court should not be permitted to strike down a congressional voting map drawn by the Legislature on the ground that it was a partisan gerrymander that violated the state Constitution.
Justice Elena Kagan warned that position had “big consequences.”
“It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that,” she said, adding: “It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state Constitution in fact prohibits.”
“This is a proposal,” she said, “that gets rid of the normal checks and balances.”
Thompson responded that Congress and federal courts remained free to act.
Justice Samuel Alito suggested that it may be dangerous to entrust state judges, many of whom are elected, with the task of assessing the constitutionality of voting maps.
“Do you think,” he asked, “that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”
The case, Moore v. Harper, No. 21-1271, concerned a voting map drawn by the North Carolina Legislature that was rejected as a partisan gerrymander by the state’s Supreme Court. Experts said the map was likely to yield a congressional delegation made up of 10 Republicans and four Democrats.
The state court rejected the argument that it was not entitled to review the actions of the state Legislature, saying that adopting the independent state legislature theory would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
Republicans seeking to restore the legislative map in February asked the U.S. Supreme Court to intervene, arguing in an emergency application that the state court had been powerless to act.
The justices rejected the request for immediate intervention in March, and the election in November was conducted under a map drawn by experts appointed by a state court. That resulted in a 14-member congressional delegation that was evenly divided between Republicans and Democrats, roughly mirroring the state’s partisan divisions.
On Wednesday, Roberts asked focused questions of both sides. He told Thompson that a 1932 Supreme Court decision, Smiley v. Holm, undercut his argument. In that decision, the court ruled that a governor’s veto did not run afoul of the Elections Clause.
“That’s a pretty significant exception,” Roberts said.
Thompson responded with a distinction that did not seem to persuade the chief justice or his colleagues. He said that procedural limits on the legislature’s power, like a veto, were constitutional but that substantive limits, like a state court’s review of a voting law under the state Constitution, were not.
Barrett seemed unconvinced. “You do have a problem with explaining why these procedural limitations are OK but substantive limitations are not,” she said, adding that the line between procedure and substance could be elusive.
Thompson responded that “this is an easy case, that this is obviously substantive because there was a map and it was thrown in the trash by the courts.”
The Supreme Court has never endorsed the “independent state legislature” theory, but four of its conservative members have issued opinions that seemed to take it very seriously.
On Wednesday, Kavanaugh seemed to be searching for a middle ground.
Drawing on a concurring opinion by Chief Justice William Rehnquist in Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush, Kavanaugh proposed that “state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that the state court had not significantly departed from state law.”
The three lawyers who argued against the independent state legislature theory said that adopting it would have enormous consequences.
But all three conceded that there may be exceptional situations in which federal courts could second-guess state court rulings based on state constitutions.
Donald Verrilli, a lawyer for state officials opposed to the theory, said the question was “whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
Alito said he was worried that the Supreme Court would announce a standard so strict that it could never be met. “The worst thing we could do, although it might be attractive for some reasons,” he said, “is to say, ‘Well, there is a limit but, you know, it’s one that in practice can never be exceeded.’”
Kagan said she had the opposite concern.
“Very good judges on very good courts can find it incredibly easy to disagree with each other,” she told Verrilli, referring to his proposed standard. “And so if Justice Alito asked you, can it be flunked, I think what I want to ask you after hearing that colloquy is, is there a danger it’s going to be satisfied too easily?”